November-December 2011

Prosecuting the drugged driver

Strategies for justice in the new world of non-alcohol intoxication offenses

David A.K. Smith

Assistant Criminal ­District Attorney in ­Brazoria County

A day at the beach! Fun in the sun! On March 19, 2010, Chris and Christina Brown and their three children set out to enjoy one of the last days of spring break. The children were Christina’s but Chris had raised them as his own. This would be a beautiful day to travel from their home near Katy to soak up the sun at Surfside Beach in Brazoria County. The eldest of these three children, Nicole King, age 14, was really excited to see her friends and spend time with her brother David, 13, and sister Alyssa, 12. The family had a cookout and the children played in the water. At 4:30 that afternoon, it was time to leave, but Nicole asked to stay with some of her friends. Christina reminded her that she still had homework to finish and that she would see her friends at school in a few days.

    The car was packed up and the family headed north on Highway 288. Chris was driving and Christina was in the passenger seat. Alyssa sat in the back middle seat between Nicole and David. It was going to be a long drive back and the kids were getting hungry and thirsty, so just north of Angleton, near FM 523, Chris pulled over completely onto the shoulder and parked. He got out and walked toward the trunk of the car. As he was nearing the trunk, he saw it.

    It was only at this point that Chris saw what so many others along Highway 288 had already seen. At least five separate calls to 911 were placed by people traveling on 288. All of the 911 calls were the same: An F-150 truck was veering across all lanes of the highway. At times it would go very slowly and impede traffic, while other times it would zoom and weave by cars at speeds in excess of 85 miles per hour. A group of college students, also coming back from the beach, was one of the 911 callers. On the recording, one of them can be heard telling the operator, “He’s going to kill someone! He’s going to kill someone!” Then, the sound of the collision could be heard on the tape. The 911 caller screamed, “Oh my God, he just killed somebody!”

    The northbound F-150 truck had veered out of its lane and entered the lane closest to the shoulder on the northbound lanes of travel, then drove along the shoulder. Chris Brown, seeing the truck barreling toward his car with his family inside, frantically waved his arms and screamed with all his might, but the driver kept speeding towards him and his family. There was no time to get in his car and move it. Chris kept desperately waving his arms and yelling, trying to get the driver’s attention, until the last possible second when Chris dove out of the way and into the ditch to the east of his car. The truck slammed into the left rear of Chris’ Toyota Camry where Nicole was seated. The force of the collision pushed the Camry northbound and into the ditch and turned the car around to face south. The all-wheel-drive truck, after colliding with the Camry, actually drove over the car, rolled, and entered the same ditch, finally ending up on its side and facing west.

    Chris looked at what was left of his car and could not comprehend what had just happened. He struggled over to his Camry and looked inside. He could hear screaming from Christina, David, and Alyssa, but Nicole looked like she was sleeping. David and Alyssa were trapped in the car and couldn’t get their seatbelts off. Several Good Samaritans saw the explosive collision and stopped to render aid. We found out later that Christina’s back was injured, but she couldn’t feel the pain yet. David had closed-head and brain trauma, severe facial trauma, including jaw and eye injuries, a femur fracture, and acute blood loss. Alyssa’s injuries included massive head trauma, multiple jaw fractures, and a collarbone fracture. Nicole was silent. The back left side of the Camry, where she was sitting, was non-existent. The family was praying that at worst, Nicole had a concussion. They did not yet know what fate befell her.

    Angleton EMS and Fire Departments arrived within minutes and were able to extricate David. Alyssa was sitting outside with a passerby. She could only look at what was left of her family—she needed to cry so badly but could not, due to her broken jaw. Angleton police and Department of Public Safety troopers arrived and began their investigation. All of the northbound lanes of Highway 288 were shut down, and multiple Life Flight helicopters were activated. Having already assessed Nicole—she was deceased—EMS was working on David and Alyssa. Christina was pleading for EMS to help Nicole because no one had talked with her about her daughter. One of the first responders knew it was time and placed a white sheet over the teenager. The cold, unrelenting realization of what this act meant began to creep into the souls of Christina and Chris. Chris’ legs gave out and he collapsed, completely overwhelmed.

The investigation

DPS Trooper Bo Stallman was the lead crash investigator and had his hands full with the scene. The crime scene, to the untrained, would have looked like chaos, but Trooper Stallman remained calm and began his collision investigation. He knew that this was a death investigation and that additionally two children and one adult were seriously injured. It did not take him long to determine the driver of the F-150 was Jeffrey Alec Thomas, age 23. Thomas had climbed out of his truck and walked to the Camry. The Good Samaritans all reported that something was “off” about Thomas and that he appeared as if he were “on something.” He attempted to pick up pieces of debris from the collision and kept demanding a bandage from EMS and police for his one visible injury—a small cut to his hand.

    Trooper Stallman had spoken with Thomas and could not smell any alcohol on his breath. However, Thomas was acting suspiciously, as if he had something in his system that was affecting his normal mental and physical faculties. Thomas kept repeating that he had come from college in Lubbock to see his parents in Sugar Land and that he was now in Sugar Land when in fact, he was in a completely separate county from where he thought he was. His speech was very slurred, and he kept stating a car had hit him and pushed him into the Camry. Stallman saw no damage to the back of Thomas’ truck to indicate that was true. Thomas then changed his story to say he was leaning over to get a CD at the time of the “accident.” This “accident” was looking like no accident to Stallman.

    Thomas kept asking to make a phone call to his dad, so Angleton police officer Brian Hoskins took Thomas to his patrol car and turned on the dash microphone to begin recording. Hoskins dialed Thomas’ dad’s phone number and put the call on speakerphone. Thomas relayed his version of the collision to his dad, then his dad asked if there was anything in Thomas’ vehicle.

    Thomas said no, that there were no witnesses and that “it’s all good.” The phone call ended and Hoskins escorted Thomas back to Trooper Stallman. Trooper Stallman began administering the standardized field sobriety tests to Thomas on video. Thomas failed all portions of the tests, including losing his balance and stumbling during the Walk-and-Turn. Stallman placed Thomas under arrest and went through the DIC-24, requesting a mandatory blood specimen. Thomas refused because he said he was not drunk. Stallman had to complete his investigation, so he asked fellow Trooper Strawn take Thomas to get his blood drawn. Strawn turned on his dashcam recorder, Mirandized Thomas, and talked with him on the way to the blood draw.

    Thomas slurred his speech and was very talkative and repetitious in his questions and answers. He kept asking if Trooper Strawn could just take him home because he had to be back at Texas Tech next week. Strawn asked Thomas if he knew that he had killed a girl. At first, Thomas appeared distraught on video, but then told Strawn that his life couldn’t get interrupted right now and that he had to be back at school. Thomas also told Strawn that he had purchased some “bars” (alprazolam) from a friend at 3:30 earlier that afternoon and had taken them all. He also said he had not taken his Adderall, which is medication for attention deficit disorder.

    After the blood draw, Thomas was transported to the county jail where he called his mother. He explained to his mom his version of the collision, that he was on “bars,” and that he had them in his system. He confirmed these facts again the next morning to Trooper Strawn in a subsequent recorded and Mirandized interview.

    Brazoria County District Attorney Investigator Vicki Kraemer was instrumental in backtracking the events leading up to the collision. She had discovered that Thomas had gotten a haircut in Lake Jackson right after he bought the alprazolam from his friend. Kraemer located the hair-cutter, who stated Thomas would not sit still in her barber chair. He admitted to smoking marijuana and asked her to pop a pimple on the back of his head. The hair-cutter told Kramer that Thomas was “on something.”

The charges

The blood results (which will be discussed later), data recorder information, mechanical inspection of the F-150, witness statements, and more, were all collected. Thomas was indicted for intoxication manslaughter in one cause number, two counts of intoxication assault in a second cause number, and a third case of intoxication assault. The files then landed on my desk.

    I set up the first of four banker’s boxes of evidence and drafted subpoenas for every person named in Stallman’s report. I then went through all of Thomas’ car insurance records. He had approximately 20 reported incidents, including a collision a year before where he had hit a car in San Antonio on a major freeway, causing it to collide with another car and flipping the trailer that the third car was pulling. San Antonio police found marijuana and alprazolam on Thomas’ person, he was charged appropriately, and he got out on bond. Just a week before the wreck that killed Nicole and injured her family, Thomas had struck a car in Sugar Land. (All officers and injured parties in that collision were subpoenaed for punishment.) Thomas had never before been convicted of a felony.

    The evidence-gathering process was exhaustive. We looked in every nook and cranny of Thomas’ life. Investigator Kraemer had pulled not only the Class C history (an often overlooked tool in such cases), but also the offense reports and tickets associated with them. Thomas’ past included 10 speeding citations, nine collisions involving a vehicle he was driving, and an administrative citation for throwing a television down a stairwell at his college. It was very interesting to realize the underlying facts associated with cases at the low end of the criminal spectrum of Thomas’ history. School records for Thomas and the injured children, as well as copies of the medical records of all parties, and Thomas’ prior vehicle claims filled banker boxes two, three, and four after they were filed with the clerk.

The electronic frontier of priceless information

In this digital age, we all hear stories of people posting things on Facebook, MySpace, and Twitter that they later regret. Thomas was no exception. While I generally search these sites for defendants in my cases (and witnesses too!), the grand jury prosecutors had already printed out Thomas’ MySpace page where he had updated his status on April 16, 2010, just over one month since he had killed Nicole King. Thomas posted the following: “Im [sic] a beer drinking sob that likes to have a good time. Partying on week days is a favorite past time, although im [sic] trying to cut back. Im [sic] at Texas Tech but who know where ill [sic] be in a week, thats [sic] how i [sic] am. …” Needless to say, the custodian of records for MySpace was subpoenaed, as were Thomas’ “friends” to authenticate that this page was his. That very night, Thomas took down his MySpace page, but it was too late.

The experts

Joe Hinton and Monte Highsmith of Joe Hinton and Associates of Houston were the collision reconstruction analysts. These two gentlemen have testified as experts for the State, defense, private insurance companies, and plaintiffs in accident and collision reconstruction. They do not have an agenda except for discovering the truth and putting their fancy words such as coefficients of friction, lateral yaw, and drag factors in very easy-to-understand presentations. They are very good at explaining to juries how a collision occurred in ways that are easy to follow. Their analysis of Thomas’ wreck:  This was no accident. Thomas was going approximately 80 miles per hour when he crashed his truck into the Camry. Thomas did not apply his brakes or attempt to correct his driving on the shoulder.

    We relied on renowned forensic toxicologist Dr. Sarah Kerrigan of the Sam Houston State Regional Crime Lab in The Woodlands. Dr. Kerrigan is extremely knowledgeable and is one of the best in her field of forensic toxicology. At our request, she had her lab run a full panel on Thomas’ blood sample. His blood contained 109 nanograms of alprazolam per milliliter. A metabolite of marijuana was also discovered in Thomas’ blood. My first question to Dr. Kerrigan was, of course, “Was Thomas intoxicated?”

    Throughout my misdemeanor and felony career to this point, my DWI cases involved alcohol or alcohol-drug combinations. I never had a pure drug intoxication case that involved the death of a child. Dr. Kerrigan was excellent at explaining there is no per se intoxication of drugs. Drugs are not eliminated from the body in a linear manner like alcohol is. The dosage, the personal idiosyncrasies of a given person’s body, and whether the defendant is a chronic or naïve user of a drug, are just some of the ways drugs can affect a person’s normal mental or physical faculties. Kerrigan explained that Thomas’ dose was at the upper range of “therapeutic” for a person with extreme panic disorder or anxiety. She quickly followed with an explanation that if a person is at a “therapeutic” dose of this drug, then by definition, he generally doesn’t have his normal mental or physical faculties because the drug is at a sufficient level where its intended effects (or rather side effects) are present in the body.

    Thomas’ behavior and demeanor at the crash site as well as before and after show he was impaired and did not have his normal mental or physical faculties; his behavior was consistent with a person affected by a central nervous system depressant. What concerned us was that no expert could say, “Jeff Thomas was intoxicated on alprazolam.” Dr. Kerrigan explained that no reputable expert could ever testify to that statement when intoxication was due to drugs because experts are limited in stating whether a person’s behavior—gleaned from videos, reports, and witness statements—is consistent with intoxication on a stimulant, depressant, or hallucinogenic. The quantitative lab results allow the expert to further complete her expert opinion statement: “The defendant’s behavior is consistent with intoxication of (stimulant/depressant/hallucinogenic) of which drug X (which was found in the defendant’s system) is a member of that specific class of drug.”

    With alcohol, hundreds of studies have determined at what blood alcohol concentration (BAC) every person loses his normal mental and physical faculties. Because there are so many legal and illegal drugs that can impair, similar studies have not been done. This is why there is no per se drug intoxication level and no per se drug intoxication law; it’s also the reason that toxicologists cannot give a definitive answer to the question, “At X level of Y drug, had the defendant lost his mental and physical faculties?”

    We knew we needed to go even further and have a Drug Recognition Expert (DRE) review the facts and evaluate if Thomas’ behavior was consistent with intoxication. No officers on scene were DRE-certified, and consequently no DRE testing was performed on Thomas. We relied on Josh Bruegger of the Pasadena Police Department, as well as Paul LaSalle of the Houston Police Department, to do DRE reconstruction. They analyzed all the facts and recordings and concluded Thomas’ behavior was indeed consistent with intoxication due to ingestion of a central nervous system depressant, such as alprazolam.

The plea process and defensive theories

There were no issues in proving the identity of the defendant, or the injuries to David, Alyssa, or Christina. It was also clear that Nicole King was dead because of Thomas. The whole issue became proving Thomas was intoxicated and, by reason of that intoxication, caused these injuries. The Thomas family hired an excellent attorney for their son, and he came at us as expected, asking for mercy for a host of reasons: The drug in his system was a therapeutic dose; it was prescribed, not an illegal substance like cocaine or heroin (though there was no evidence of Thomas ever being prescribed alprazolam); Thomas hadn’t taken his ADD medicine; he was leaning over to get a CD; and he’s just a kid—give him probation and a low pen time number.

    However, due to the hard work of the police, very patient experts with whom we had meetings, and collection of evidence, the life story of Jeff Thomas allowed us to be handily prepared to prove Thomas’ drug intoxication and refute defensive theories. The ever-open door to the office of our elected DA, Jeri Yenne, was instrumental as we fought for justice in preparing this case. My co-prosecutor Jessica Pulcher was an excellent second chair who kept my course through this case true and steady.

    David and Alyssa had endured multiple surgeries since that fateful day of March 19, 2010. Christina Brown stated in a local newspaper that her children still needed more surgeries and would never be the same. Their daughter Nicole was stolen from them at such a young age by the selfish actions of Jeffrey Thomas. Nicole was very active in her church and school, and Christina told me one of Nicole’s dreams was to serve as a translator at the United Nations. Getting a driver’s license, picking a prom dress, graduating college, getting married, and giving her parents grandchildren would now never happen. David told me that every day he looks in the mirror and sees the large scar on his face, he is forced to remember what happened to his sister. If he could have changed places with her, he would have done so in a heartbeat. What is justice for a family torn apart by an intoxicated driver?

    Thomas hired an additional defense attorney. I assume that because Thomas told his bond supervision officer that he wasn’t setting foot in prison and that any jury would walk him, he didn’t like our first plea offer of 15 years in TDCJ with a deadly weapon finding on the intoxication manslaughter, with 10 years of probation to be served consecutively for the intoxication assaults. We felt comfortable we had made a fair offer, which ultimately was rejected. Again, it seemed like we were headed for trial.

Heading to trial

Seventeen months of evidence-gathering and trial preparation were culminating with Thomas’ criminal trial in August 2011. At the eleventh hour, defense counsel approached us and wanted another offer. The State, in exchange for waiver of appeal in all causes, offered Thomas 10 years in prison with an affirmative finding of a deadly weapon, with one count of intoxication assault to be served 10 years in TDCJ probated for 10 years. As part of the plea negotiations, the indictment with two counts of intoxication assault was amended to add two counts of aggravated assault with a deadly weapon. We abandoned the initial counts of intoxicated assault. To this indictment, Thomas was offered a 10-year deferred adjudication community supervision which, if revoked, could mean up to 20 years in prison on top of the original 10 years on the intoxication manslaughter indictment.

    The terms of the community supervisions included: standard DWI intoxication felony conditions, 200 hours of community service, no early termination, all probations to run concurrently with each other but stacked on the prison sentence, an affirmative finding of deadly weapon on the deferred aggravated assault counts, and $55 a month to Katy Students Against Destructive Decisions (SADD, formerly Students Against Drunk Driving). Additionally, Thomas must speak to Katy SADD and serve seven days in the Brazoria County jail every March he is on probation, and he must maintain a roadside memorial for Nicole King at the location of the collision. Thomas can’t operate any vehicle without court approval, and he must carry a picture of Nicole King at all times to remind him of what he did; he must also show his community supervision officer he is complying with this requirement at any time.

The new danger of drugged drivers

Ultimately, Thomas accepted our offer. Ten years with an affirmative deadly weapon finding is a significant amount of prison time for an intoxicated manslaughter conviction, especially for a defendant who was probation-eligible. Coupled with his cumulated probations and the possibility of going back to prison for 20 more years, this guaranteed the Brown family the result we mutually desired.

    We encountered many difficulties in preparing for this trial. When it is so easy to obtain a “prescription” drug, why risk being caught with cocaine or heroin? A police officer is capable of stating a person is intoxicated by alcohol, but no one, not even toxicology experts, can state a defendant is intoxicated by a drug, only that his behavior is consistent with intoxication. If the observational evidence leading up to the collision and at the scene weren’t available, we would have had to potentially amend the charges to just manslaughter or aggravated as-sault—and the mens rea of “reckless” could have encouraged a jury to lean toward probation for this young offender.

    My hope from this case—and Brazoria County District Attorney Jeri Yenne shares it—is that our fellow citizens understand that there are increasing fatalities caused by drivers under the influence of drugs. Drivers should realize that even if they are taking medication prescribed by a licensed physician, any drug can cause them to be impaired and therefore incapable of safe driving. The choice to drive while impaired is perhaps one of the most selfish people can make, and when they choose to do so, they are setting a course for catastrophic consequences. In a split second, the lives of two families were drastically altered: The Thomas family lost their son to prison for 10 years, and the Brown family lost their beloved Nicole forever.